Devine v Pinapati

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Devine v Pinapati 2009 NY Slip Op 33419(U) May 26, 2009 Supreme Court, Albany County Docket Number: 2493-06 Judge: Jr., John C. Egan Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] t Cieri<. f\\bafl':/ cou~ei 10420434 oocurnent Nu~g 12:16:02 PM Rcvd 06/01/20 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ALBANY \\\~~~\\\l\\\~\\\\\\~\\~\\\I"\\" JASON DEVINE and SHARON DEVINE, as parents and Natural Guardians of JOSEPH MAXIMUS DEVINE, an Infant, and JASON DEVINE and SHARON DEVINE, Individually, Plaintiffs, -against- DECISION and ORDER Index No: 2493-06 RJI No:Ol-06-087496 SUHASINI PINAPATI, M.D., MICHAEL P. LOONEY, M.D., VISITING NURSE ASSOCIATION OF ALBANY, INC., MARY HANNELL, R.N. C.P.C.N., IAN THOMAS COHEN, M.D., BRANKO FURST, M.D., KATHLEEN DONELLY, M.D., MARILYN A. FISHER, M.D., ALBANY MEDICAL COLLEGE and THE ALBANY MEDICAL CENTER HOSPITAL, DAYO LANIER, M.D., Individually, and as agent, servant and/or employee of SUHASINI PINAPATI, M.D., and/or SUHASINI PINAPATI, M.D., P.C., SUHASINI PINAPATI, M.D., P.C., Defendants. APPEARANCES: FEENEY, CENTI AND MACKEY Attorneys for Plaintiffs (L. Michael Mackey, Esq.) 116 Great Oaks Boulevard Albany, New York 12203 ROSENBLUM, RONAN, KESSLER & SARACHAN Co-Counsel for Plaintiffs (Bruce A. Sutphin, Esq.) 110 Great Oaks Office Park Albany, New York 12203 [* 2] BROWN & TARANTINO, LLP Attorney for Defendant, Suhasini Pinapati, M.D. (Steven W. Kraus, Esq.) White Plains Plaza One North Broadway, 10th Floor White Plains, New York 10601 MAYNARD, O'CONNOR, SMITH & CATALINOTTO, LLP Attorneys for Defendant Albany Medical Center (Christopher K.H. Dressler, Esq.) 6 Tower Place Albany, New York 12203 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER Attorneys for Defendant Visiting Nurse Association of Albany, Inc. (F. Douglas Novotny, Esq.) 677 Broadway Albany, New York 12207 HANLON, VELOCE & WILKINSON Attorneys for Defendant Mary Hannell, RN CPCN (Thomas J. Wilkenson, Esq.) 7 Executive Center Drive Albany, New York 12203 BURKE, SCOLAMIERO, MORTATI & HURD, LLP Attorneys for Defendant Dayo Lanier, MD (Judith B. Aumand, Esq.) 302 Washington Avenue Extension PO Box 15085 Albany, New York 12212 O'CONNOR, O'CONNOR, BRESEE & FIRST, PC Attorneys for Defendant Michael Looney, M.D. (Michele M. Monserrate, Esq.) 20 Corporate Woods Boulevard Albany, New York 12211 JOHN C. EGAN, JR., J.: This is a medical malpractice action commenced in April, 2006, in which it is alleged that the defendants negligently diagnosed and treated the infant plaintiff, which resulted the 2 [* 3] infant plaintiff sustaining brain injuries and other damages'. The defendant, Michael P Looney, M.D. (defendant Looney), moves, pursuant to CPLR §3212, for summary judgment dismissing the plaintiffs' complaint, arguing that the defendant Looney has no liability in this action, as his limited involvement in the care of the infant plaintiff was in accordance with standards of good and accepted medical practice. While plaintiffs assert that they can make a prima facie case against the defendant Looney based on his alleged deficient plan of care, they do not oppose the defendant Looney's motion. Specifically, plaintiffs assert that " .... it is clear to the plaintiff that there were physicians at the Albany medical Center Hospital, which is a party to the action, who were on site and who made the decision to admit the infant plaintiff to the pediatric floor rather that the PICU and, further, that defendant Dayo Lanier, M.D., was present in the Hospital the morning of November 16, 2003, evaluated the infant at that time, and kept him on the regular pediatric floor. As a result, any malpractice by Dr. Looney would be subsumed by the physicians employed by Albany Medical Center Hospital (which has adequate insurance coverage for this claim), and the continued presence of Dr. Looney in the action will unnecessarily complicate trial ofthis action with no corresponding benefit to the infant plaintiff.... " 2 Accordingly, it is hereby 'Plaintiffs also claim that the defendants failed to obtain the parents' informed consent prior to undertaking certain medical procedures and assert damages based on the loss of services, society and benefits. 2 Plaintiffs' counsel asserts the defendant Looney made this motion based on the co-defendant's refusal to stipulate to discontinue the action against the defendant Looney provided that there would be no apportionment of liability to Dr. Looney under General Obligations Law § 15-108. 3 [* 4] ORDERED, that the motion of the defendant Michael P. Looney, seeking an Order, pursuant to CPLR §3212, dismissing the complaint, is hereby granted. The parties are reminded of the Court's Scheduling Order dated March 26, 2009. This memorandum shall constitute both the decision and the order of the Court. All papers, including this decision and order, are being returned to O'Connor, O'Connor, Bresee & First, PC. The signing of this decision and order shall not constitute entry or filing under CPLR §2220. Counsel is not relieved from the applicable provisions of that section relating to filing, entry and notice of entry. IT IS SO ORDERED. Dated: May~ 2009 Albany, New York The Court considered the following N J !/ C. EGAN, JR., J.S.C. papers:(]~~ By Plaintiffs: ~ ~.1.oq (> J. ~ \../'r Affidavit of Bruce A. Sutphin, Esq., sworn to on March 31, 2009. . o Albany County Clerk R ocument Number 1 0420434 cvd 06/01/2009 12: 16:02 PM 1111m1111111111111111111111111m11111m111 By Defendant Michael P. Looney, M.D.: Notice of Motion, dated February 24, 2009; Affirmation of Michelle M. Monserrate, Esq., dated February 24, 2009, with Exhibits A-K; Affidavit of Roy Horowitz, M.D., sworn to on February 18, 2009, with Exhibit A. 4

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